Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD217398, Howard H. Shore, Judge.
AARON, J.
I.
INTRODUCTION
The People charged Juka Holiday with evading a police officer while driving with a willful or wanton disregard for the safety of persons or property ─ a violation of Vehicle Code section 2800.2, subdivision (a). At Holiday's trial, in accordance with section 2800.2, subdivision (b), the trial court instructed the jury that "driving with [a] willful or wanton disregard for the safety of persons or property, " includes committing three or more vehicle violations for which a point is assigned while willfully fleeing from or attempting to elude a peace officer. The jury found Holiday guilty of the charged offense. The trial court granted Holiday formal probation for a term of three years, subject to various conditions, including that he abstain from drinking alcohol, not be in places where alcohol is the main item for sale (except in the course of his employment), and, if directed by a probation officer, submit to alcohol testing and attend "self-help" meetings.
Unless otherwise specified, all subsequent statutory references are to the Vehicle Code.
On appeal, Holiday contends that section 2800.2, subdivision (b) establishes an unconstitutional mandatory presumption of the existence of the mental state required for a violation of section 2800.2, subdivision (a). Holiday also argues that the trial court improperly restricted his ability to challenge, at trial, the prosecution's failure to collect and present DNA evidence. Finally, Holiday contends that the trial court erred in imposing the alcohol-related probation conditions. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On October 9, 2008, San Diego Police Officer Adam Schrom and his partner, Officer Dan Stanley, were patrolling near the area of 31st Street and Webster Avenue. At approximately 10:30 p.m., Officer Schrom started to follow an Acura. The driver of the Acura sped off, committing multiple traffic violations as he did so, including speeding, failing to stop at a stop sign, and failing to stop at a red light. When the Acura finally stopped, the driver ─ later identified as Holiday ─ and two passengers, got out of the car and fled on foot.
Officer Schrom ran after Holiday. Holiday ran in the side door of a nearby house, which police later determined was Holiday's residence. Officer Schrom remained outside the house. Less than a minute later, Holiday came out the front door of the house. Sergeant Mark Tallman, who had arrived at the scene to assist in the chase, detained Holiday. Additional officers responded to the scene and were able to detain the two men who had been riding as passengers in the Acura. Officer Schrom identified Holiday at the scene, and at trial, as the driver of the Acura.
III.
DISCUSSION
A. Section 2800.2, subdivision (b) establishes a rule of substantive law, not an unconstitutional mandatory presumption
Holiday claims that section 2800.2, subdivision (b) is unconstitutional because it establishes a mandatory presumption pertaining to the existence of the mental state that is required for a violation of section 2800.2, subdivision (a). Holiday's claim raises a question of law that we review de novo. (Sanchez v. State (2009) 179 Cal.App.4th 467, 486.)
1. The statutory scheme
Section 2800.1 establishes the misdemeanor offense of evading a peace officer. That statute provides in relevant part, "Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year...." (§ 2800.1, subd. (a).)
Section 2800.2 provides that evading a peace officer with willful or wanton disregard for the safety of persons or property shall constitute a misdemeanor/felony offense. That statute provides in relevant part:
"(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year.
"(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs."
2. Rebuttable presumptions and conclusive presumptions
In People v. McCall (2004) 32 Cal.4th 175 (McCall), the California Supreme Court summarized the difference between "permissive" and "mandatory rebuttable presumptions" on the one hand, and "conclusive presumptions" on the other. (Id. at pp. 182, 184, italics omitted.) The McCall court explained that a presumption "'is an assumption of [an ultimate or elemental] fact... to be made from [an evidentiary or basic] fact or group of [such] facts found or otherwise established in the action.'" (Id. at p. 182, quoting Evid. Code, § 600, subd. (a), brackets added in McCall.) A permissive rebuttable presumption exists when a fact finder may find an elemental fact based on the proof of a basic fact. (McCall, supra, 32 Cal.4th at p. 183.) A mandatory rebuttable presumption exists when a fact finder must find the elemental fact where the basic fact is established. (Ibid.) In either case, "the defendant has the opportunity to rebut the presumed connection between the basic and ultimate facts." (Ibid.)
The McCall court noted that a mandatory rebuttable presumption may be unconstitutional:
"Because a mandatory rebuttable presumption 'tells the trier of fact that he or they must find the elemental fact upon proof of the basic fact, at least until the defendant has come forward with some evidence to rebut the presumed connection between the two facts, ' it is a 'troublesome' evidentiary device in a criminal case since the prosecution bears the burden of establishing guilt beyond a reasonable doubt. [Citation.] The prosecution 'may not rest its case entirely on a [mandatory rebuttable] presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.' [Citation.]" (McCall, supra, 32 Cal.4th at p. 182.)
In contrast to permissive and mandatory rebuttable presumptions, conclusive presumptions "are irrebuttable by definition...." (McCall, supra, 32 Cal.4th at p. 185, citing Evid. Code, § 620, italics added.) "'[A] conclusive or indisputable presumption is entirely different from the ordinary rebuttable presumption: [N]o evidence may be received to contradict it. Hence, it is more accurately described as a rule of substantive law rather than of evidence. [Citations.]' [Citation.]" (McCall, supra, 32 Cal.4th at p. 185.) Because a conclusive presumption "simply describes a legislative enactment of substantive law" (id. at p. 187), it does not pose the constitutional concerns present in a statute that contains a mandatory rebuttable presumption. (Id. at p. 185 ["[O]ur court has repeatedly rejected defendants' attempts to invoke the term conclusive presumption as a means to challenge the constitutionality of criminal law statutes"].)
Notwithstanding the analytical distinction between rebuttable and conclusive presumptions elucidated by the McCall court, the court acknowledged that there is "much confusion regarding the term 'conclusive presumption' because it has been incorrectly utilized to describe mandatory rebuttable presumptions." (McCall, supra, 32 Cal.4th at p. 186.)
3. Section 2800.2, subdivision (b) establishes a rule of substantive law
Numerous courts have upheld the constitutionality of section 2800.2, subdivision (b) against challenges that the statute establishes an unconstitutional presumption. (E.g., People v. Mutuma (2006) 144 Cal.App.4th 635, People v. Laughlin (2006) 137 Cal.App.4th 1020 (Laughlin), People v. Pinkston (2003) 112 Cal.App.4th 387, People v. Williams (2005) 130 Cal.App.4th 1440.) In Laughlin, the court applied McCall and concluded that section 2800.2, subdivision (b) does not establish an unconstitutional mandatory presumption, but rather, creates substantive law. (Laughlin, supra, 137 Cal.App.4th at pp. 1027-1028.) The Laughlin court reasoned, "[Section 2800.2, subdivision (b)] sets forth a definition of conduct that is deemed to be the legal equivalent of willful or wanton disregard for purposes of section 2800.2. Subdivision (b) does not follow the common lay meaning of the term but is a term of art for purposes of section 2800.2." (Laughlin, supra, 137 Cal.App.4th at pp. 1027-1028; accord People v. Pinkston, supra, 112 Cal.App.4th at p. 392 ["Subdivision (b) of Vehicle Code section 2800.2 does not state a mandatory presumption. Rather, it sets out the Legislature's definition of what qualifies as willful and wanton conduct under subdivision (a)"].)
We agree with these courts that section 2800.2 does not establish a mandatory rebuttable presumption. An application of the McCall definition makes this clear. A defendant who is charged with a violation of section 2800.2 does not have "the opportunity to rebut the presumed connection between the basic and ultimate facts." (McCall, supra, 32 Cal.4th at p. 183.) In other words, the statute does not afford a defendant the opportunity to claim that "driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur [the basic fact]" (§ 2800.2, subd. (b)), does not constitute "willful or wanton disregard for the safety of persons or property [the ultimate fact]...." (§ 2800.2, subd. (a).)
Section 2800.2, subdivision (b) provides that proof of the basic fact ─ driving while fleeing and committing three point violations, establishes the ultimate fact ─ driving with willful or wanton disregard for the safety of persons or property. The statute thus establishes a rule of law, rather than a mandatory rebuttable presumption. (Laughlin, supra, 137 Cal.App.4th at p. 1028 ["Language used by the Legislature makes it clear it was not creating a mandatory presumption but was instead creating a rule of substantive law."].)
Holiday does not contend that section 2800.2, subdivision (b) establishes a rebuttable presumption. In his brief, he acknowledges that a jury is "compelled to find willful and wanton disregard based on a finding of three traffic violations, even the though the traffic violations may have been conducted with a concern for safety or property." Instead, Holiday's primary argument on appeal is that a conclusive presumption may, in fact, be unconstitutional, contending that, "conclusive presumptions have always been central to the United States Supreme Court's jurisprudence regarding mandatory presumptions...." This argument is based on the "confusion" (McCall, supra, 32 Cal.4th at p. 186, fn. 12), created by the language in cases that Holiday cites, Sandstrom v. Montana (1979) 442 U.S. 510 and Francis v. Franklin (1985) 471 U.S. 307, in which the United States Supreme Court used the term "conclusive presumption" in referring to jury instructions that had the potential effect of improperly removing an element of the offense from the jury's consideration. (Sandstrom, supra, 442 U.S. at p. 517, Francis, supra, 471 U.S. at p. 316.) The McCall court clarified that "a mandatory rebuttable presumption that, due to instructional error, is presumed by the jury to be conclusive in a particular trial is analytically distinct from an Evidence Code section 620 conclusive presumption ─ the former is unconstitutional... as an improper mandatory presumption, and the latter simply describes a legislative enactment of substantive law." (McCall, supra, 32 Cal.4th at p. 187, fn. omitted.) Unlike the jury instructions at issue in Sandstrom and Francis, this case involves a legislative enactment that establishes a rule of substantive law.
Holiday also claims that section 2800.2, subdivision (b) is unconstitutional under the reasoning of Carella v. California (1989) 491 U.S. 263 (per curiam) and People v. Roder (1983) 33 Cal.3d 491. Carella and Roder are distinguishable, however, because, as noted by the McCall court, both of these cases involved a mandatory rebuttable presumption as to the defendant's mental state, not a conclusive presumption. (McCall, supra, 32 Cal.4th at pp. 184, 186-187.)
Finally, Holiday argues that section 2800.2, subdivision (b) is unconstitutional because it "effectively removes the crucial element of intent contained in section 2800.2, subdivision (a), which differentiates [section] 2800.2 from the misdemeanor, section 2800.1." A defendant, such as Holiday, may be found guilty of a violation of section 2800.2 based on his conduct "in driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur." We agree with Holiday that in providing that such conduct constitutes a felony/misdemeanor, "[section 2800.2, ] subdivision (b) allows increased liability without a distinct criminal intent."
However, we discern no constitutional infirmity in section 2800.2, subdivision (b). The Legislature could have reasonably concluded that a defendant who commits three point violations while fleeing from a peace officer should be subject to a more severe potential sentence than a defendant who flees from a peace officer without committing three such violations. We reject Holiday's suggestion that section 2800.2, subdivision (b) is unconstitutional because it permits the prosecution to establish the defendant's mental state by way of proof of the defendant's conduct, and conclude that section 2800.2, subdivision (b) establishes a rule of substantive law, not an unconstitutional mandatory presumption. As the Laughlin court stated, "the Legislature has broad powers 'to define one thing in terms of another.' [Citation.]" (Laughlin, supra, 137 Cal.App.4th at p. 1028.)
We also reject Holiday's suggestion that section 2800.2, subdivision (b) establishes a strict liability offense. In order to violate section 2800.2, subdivision (b), the defendant must have been "fleeing or attempting to elude a pursuing peace officer, " which requires that the defendant have acted in a willful or purposeful manner. (See CALCRIM No. 2181 [defining elements of section 2800.2].)
B. The trial court did not abuse its discretion in restricting defense counsel's cross-examination and argument regarding the People's failure to collect and present DNA evidence
Holiday claims that the trial court erred in sustaining the prosecutor's objection to a portion of defense counsel's cross-examination of Officer Schrom's testimony concerning the collection of DNA evidence. We review a trial court's evidentiary rulings under the abuse of discretion standard of review. (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on another ground by People v. Rundle (2008) 43 Cal.4th 76, 151.) Holiday also claims that the trial court erred in restricting defense counsel's closing argument relating to the People's failure to present DNA evidence. We apply the abuse of discretion standard of review to this claim, as well. (See People v. Benavides (2005) 35 Cal.4th 69, 110 (Benavides).)
1. Factual and procedural background
a. Defense counsel's cross-examination of Officer Schrom
Defense counsel cross-examined Officer Schrom regarding his training and experience in collecting various types of physical evidence, including DNA evidence. Officer Schrom testified that he had training and experience in collecting "certain types" of DNA evidence. Officer Schrom also acknowledged that he could contact other law enforcement officers to assist in the collection of DNA evidence if he did not know how to collect such evidence in a particular case. For example, Officer Schrom testified that an evidence technician would be responsible for collecting DNA from the steering wheel of a car.
During defense counsel's cross-examination of Officer Schrom regarding DNA evidence, the following exchange occurred:
"[Defense counsel]: One thing you know about DNA evidence is that it's transferred by bodily fluids; right?
"[Officer Schrom]: Yes.
"[Defense counsel]: For example, through blood?
"[Officer Schrom]: Correct.
"[Defense counsel]: Also with saliva?
"[Officer Schrom]: Yes.
"[Defense counsel]: And also with skin oils?
"[The prosecutor]: Objection as to this line of questioning, your honor.
"[The court]: Sustained. I'm not going to allow the witness to speculate about whether evidence could have been obtained. You can cut to the chase and ask him whether or not he had any samples taken tha[t] night and then move on.
"[Defense counsel]: In this particular case, you didn't have any samples of DNA taken from the Acura?
"[Officer Schrom]: No. I believe the vehicle was impounded on an evidence hold, and we also collected a hat. And I believe the key to the car was also placed in evidence. But... the experts did not take any DNA from any of the hat or keys because it's not cost effective and we had the suspect in custody.
"[Defense counsel]: Okay, Let's back up a little bit. You said that no DNA was taken from the vehicle, the Acura?
"[Officer Schrom]: No.
"[Defense counsel]: Specifically like the steering wheel where somebody would hold onto; right?
"[Officer Schrom]: Correct."
b. Defense counsel's closing argument
During closing argument, defense counsel argued that the People's failure to present certain evidence established reasonable doubt as to whether Holiday committed the charged offense. With respect to the failure to collect fingerprint and DNA evidence, the following colloquy occurred:
"[Defense counsel]: And most importantly, the most important thing in this case is the DNA and the fingerprint evidence that the officers failed to collect.
"[The prosecutor]: Objection, Your Honor; calls for speculation.
"The court: Well, I will let you address that in rebuttal as long as we go [sic] into speculation of what they may have proven.
"[Defense counsel]: Okay. Let me be clear on this. What the officers failed to attempt to collect, and that's an accurate statement. [¶] And let's talk about DNA evidence for just a moment. DNA evidence is quite... possibly the crown jewel of all evidence that there is.
"[The prosecutor]: Objection, your honor.
"The court: Sustained. There is no evidence regarding DNA in this trial. Let's move on.
"[Defense counsel]: DNA evidence that the officer failed to attempt to collect could have been an issue in this case. We don't know.
"[The prosecutor]: Objection, your honor; speculation.
"[Defense counsel]: Your honor. Addressing the failure to collect.
"The court: All right. As long as you don't lead the jury to believe that that [sic] could have produced additional evidence because there's nothing in the record to suggest that."
Defense counsel proceeded to argue at length to the jury regarding the People's failure to collect and present DNA evidence. For example, counsel argued that "it was feasible for the San Diego Police Department to attempt to collect DNA evidence... and they chose not to do that." Defense counsel argued that, in presenting computer animations during the trial, the prosecutor was attempting to "correct a mistake that was made by the police officers, " who had failed to collect DNA evidence.
Defense counsel reminded the jury that Officer Schrom had explained that the failure to collect DNA evidence in this case was based on a decision that to do so would be too expensive. Defense counsel questioned the reasonableness of this explanation in several ways, including suggesting that the costs associated with conducting a jury trial could have been avoided if the prosecution had attempted to collect DNA. Defense counsel also suggested that the prosecution could have directed the collection of evidence from which DNA testing could have been performed, and later decided whether it was necessary to perform such tests.
At the end of his argument, defense counsel asked the jurors to imagine themselves in five years opening a newspaper and reading a headline that stated, "'DNA evidence in Juka Holiday's case.'" Defense counsel asked the jurors whether they would be comfortable reading the article or whether they would "have a doubt" about their decision in this case.
In his rebuttal closing argument, the prosecutor stated:
"So in terms of [defense counsel's] arguments [pertaining to] DNA, in a situation like that... police don't normally spend thousands of dollars to do DNA testing in a situation where the culprit, the driver of the car, was caught 20 to 25 seconds later and [there were] numerous eyewitnesses, DNA would not be done in that particular instance."
Although the precise bases for the trial court's rulings are not entirely clear from the record, it appears that the trial court restricted defense counsel's cross-examination of Officer Schrom on the ground that the defense counsel's question would not elicit relevant evidence, and/or that any relevant evidence that might be elicited would be excludable pursuant to Evidence Code section 352.
Relevant evidence is "evidence... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Although "'there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any [material] fact....'" (People v. Freeman (1994) 8 Cal.4th 450, 491.) Evidence that leads only to speculative inferences is irrelevant. (People v. Stitely (2005) 35 Cal.4th 514, 549.)
Evidence Code section 352 authorizes a trial court to exclude relevant evidence under certain circumstances. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"'A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact. [Citation.] '[The] right is not unbounded, however; the trial court retains discretion to impose reasonable time limits and to ensure that argument does not stray unduly from the mark.' [Citation.]" (Benavides, supra, 35 Cal.4th at p. 110.)
3. Application
After permitting defense counsel to ask Officer Schrom numerous questions pertaining to his experience and training in collecting DNA and the manner by which DNA evidence can be transferred, the trial court sustained an objection to a question concerning the transfer of DNA. The answer to this question would have had little probative value because the jury heard undisputed testimony that the police had elected not to attempt to collect DNA evidence, due to the cost involved, regardless of whether it might have been possible to do so. Defense counsel's proposed additional cross-examination concerning the manner by which DNA could be transferred would therefore have served little purpose other than to prolong the discussion of DNA evidence in front of the jury.
Further, in sustaining the objection, the trial court told defense counsel that he would be allowed to inquire of Officer Schrom whether DNA samples had been taken from the vehicle in question. The trial court thus permitted Holiday to present his defense that the lack of DNA evidence tended to demonstrate reasonable doubt that he was guilty of the charged offense. Under these circumstances, it was well within the trial court's discretion to conclude that whatever marginal relevance additional evidence about the manner by which DNA evidence can generally be obtained might have had was outweighed in this case by the undue consumption of time, and the substantial danger of confusing the issues and misleading the jury. (See Evid. Code, § 352.)
Similarly, during closing argument the trial court permitted defense counsel to argue at length about the prosecution's failure to collect DNA evidence. The court did not abuse its discretion in urging defense counsel to "move on, " after counsel had argued that police officers failed to collect DNA evidence, and characterized such evidence as "possibly... the crown jewel of all evidence that there is...." Further, the court expressly permitted defense counsel to argue that the prosecution's failure to collect DNA evidence demonstrated reasonable doubt.
While Holiday relies on U.S. v. Thompson (9th Cir. 1994) 37 F.3d 450 to support his argument, that case is clearly distinguishable. In Thompson, police officers arrested Thompson, who was carrying a suitcase that contained cocaine, at an airport. (Id. at p. 451.) The government charged Thompson with possession of cocaine with intent to distribute, and a jury found her guilty of the charged offense. (Id. at p. 452.) On appeal, the Ninth Circuit concluded that the district court had erred in granting the government's motion in limine forbidding defense counsel from cross-examining government witnesses concerning the lack of fingerprint evidence, and from commenting on the lack of such fingerprints during closing argument. (Id. at p. 454.) In contrast, in this case, the trial court permitted defense counsel to cross-examine Officer Schrom concerning the lack of DNA evidence, and to comment on the lack of DNA evidence during closing argument.
Holiday also argues that the trial court's "imprecise comments [in sustaining the prosecutor's objections] could have been understood by the jur[ors] to mean that they were not to consider the lack of evidence at all because the ability to produce it is speculative." We are not persuaded. The thrust of both defense counsel's cross-examination and his closing argument, quoted above, was that the People's failure to present certain evidence established reasonable doubt as to whether Holiday committed the charged offense. As noted previously, the trial court permitted defense counsel to present this theory to the jury, informed defense counsel that he could ask Officer Schrom whether the police had obtained DNA samples on the night in question, and permitted defense counsel to present argument to the jury regarding the People's failure to collect DNA evidence. Under these circumstances, the jury could not have reasonably understood the trial court's comments to mean that it was not permitted to consider the lack of evidence in determining whether Holiday committed the charged offense.
Holiday also argues on appeal that the trial court's denial of defense counsel's request to instruct the jury pursuant to Evidence code section 412 that, "[i]f a party offers less satisfactory evidence when stronger or more satisfactory evidence could have been produced at trial, the evidence offered should be viewed with distrust, " increased the prejudicial impact of the trial court's comments. We reject this argument because, for the reasons stated in the text, the jury could not have reasonably understood the trial court's comments to preclude its consideration of the lack of evidence in determining Holiday's guilt. Holiday does not argue on appeal that the trial court erred in failing to instruct the jury pursuant to Evidence Code section 412.
Accordingly, we conclude that the trial court did not abuse its discretion in restricting defense counsel's ability to challenge the prosecution's failure to collect and present DNA evidence.
C. The trial court did not abuse its discretion in imposing various probation conditions related to alcohol
Holiday claims that the trial court erred in imposing various probation conditions related to alcohol, including that he abstain from drinking alcohol, that he not be in places where alcohol is the main item for sale (except in the course of employment), and that he submit to alcohol testing and attend "self-help" meetings if directed by a probation officer. We review the trial court's imposition of probation conditions pursuant to the abuse of discretion standard of review. (People v. Balestra (1999) 76 Cal.App.4th 57, 65 (Balestra).)
1. Governing law
a. General principles of law governing probation conditions
"A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....' [Citation.]" (People v. Lent (1975) 15 Cal.3d 481, 486, superseded on another ground as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-291.) "Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Ibid.) The touchstone is whether the condition is reasonable under all of the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 233-234.) "Insofar as a probation condition serves the statutory purpose of 'reformation and rehabilitation of the probationer' ([Pen. Code, ] § 1203.1), it necessarily follows that such a condition is 'reasonably related to future criminality' and thus may not be held invalid whether or not it has any 'relationship to the crime of which the offender was convicted.' [Citation.]" (Balestra, supra, 76 Cal.App.4th at p. 65.)
b. Alcohol-related probation conditions in cases in which the defendant has a history of substance abuse
In People v. Smith (1983) 145 Cal.App.3d 1032 (Smith), the defendant was convicted of possessing PCP and was under the influence of PCP at the time of his arrest. The probation report stated that the defendant had long abused various illegal substances, including marijuana and cocaine, and that he was in need of "professional guidance in regards to drugs...." (Id. at p. 1034.) However, there was no evidence that the charged offense involved the use of alcohol, and the probation report did not suggest that the defendant had abused alcohol in the past. Nevertheless, in upholding an alcohol-related probation condition, the Smith court noted that "[d]rinking at any time, even for the social, controlled drinker who can stop at will, can lead to a temporary relaxation of judgment, discretion, and control.... [T]he physical effects of alcohol are not conducive to controlled behavior." (Id. at pp. 1034-1035.) The Smith court concluded, "Given the nexus between drug use and alcohol consumption, we find no abuse of discretion in the imposition of the condition of probation relating to alcohol usage." (Id. at p. 1035.)
In People v. Beal (1997) 60 Cal.App.4th 84, 86, this court stated, "[W]e perceive that common sense supports the existence of a reasonable relationship between alcohol use and drug use." Further, we noted that this view is supported by case law, empirical research, and clinical practices:
"[E]mpirical evidence shows that there is a nexus between drug use and alcohol consumption. It is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs. (See [Smith, supra, 145 Cal.App.3d at p. 1034], citing Pollack, Drug Use and Narcotic Addiction (1967) U.So. Cal. Inst. of Psychiatry and L. for the Judiciary, pp. 1-2, 4-5.) Presumably for this very reason, the vast majority of drug treatment programs, including the one Beal participates in as a condition of her probation, require abstinence from alcohol use. (Am. U.Sch. of Pub. Affairs, 1997 Drug Court Survey Report: Executive Summary, p. 49.)" (Beal, supra, 60 Cal.App.4th at p. 87.)
2. Application
The probation report states that Holiday started using marijuana when he was 15 years old, and that he last used marijuana in April 2008. The report also states that Holiday first consumed alcohol when he was 17 years old, and that Holiday reports that he currently is a "social drinker." The probation report also indicates that in 2001, while a juvenile, Holiday was charged with driving a vehicle while under the influence of a drug, and that twice in 2007, Holiday was arrested for being under the influence of a controlled substance. The probation report also indicates that Holiday was in a residential substance abuse program from August 2007 until October 2007. At the sentencing hearing, the trial court noted that in 2006, Holiday violated probation by using a controlled substance, failing to abstain from the use of alcohol, and failing to attend Narcotics Anonymous meetings.
At the time of his commission of the charged offenses, Holiday was 23 years old.
In a letter sent to the court prior to sentencing, Holiday stated, "I got off probation successfully, after dealing with a few drug test violations at CRASH rehabilitation center."
In sum, the record indicates that Holiday has a significant history of substance abuse. We therefore reject Holiday's contention that the trial court erred in imposing the alcohol-related probation conditions because "nothing in the record indicates that he has a problem with drugs or alcohol." (Italics added.)
We also reject Holiday's claim that a trial court may not impose alcohol-related probation conditions based on a defendant's history of abusing drugs other than alcohol. While Holiday relies on People v. Kiddoo (1990) 225 Cal.App.3d 922, 927-928, disapproved on another ground by People v. Welch, supra, 5 Cal.4th at page 237, this court has expressed its disagreement with the "fundamental assumptions in Kiddoo that alcohol and drug abuse are not reasonably related and that alcohol use is unrelated to future criminality where the defendant has a history of substance abuse." (Beal, supra, 60 Cal.App.4th at pp. 86-87; see also Balestra, supra, 76 Cal.App.4th at p. 68 [stating that Kiddoo, "is simply inconsistent with a proper deference to a trial court's broad discretion in imposing terms of probation"].) We agree with the Beal court, and conclude that in light of Holiday's history of substance abuse, the trial court did not abuse its discretion in imposing the alcohol-related probation conditions.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.